• Key point: Confidential church personnel records ordinarily must be disclosed in response to a subpoena. However, there are limited exceptions to this rule.
• The Montana Supreme Court ruled that a Catholic diocese did not have to turn over its personnel records on a priest who was charged with deviate sexual misconduct. A priest was charged with two counts of deviate sexual misconduct. He pled not guilty to the charges, and presented the prosecution with a list of 15 character witnesses who were prepared to testify in his favor concerning his exemplary behavior. The prosecutor sought a subpoena to obtain the priest's personnel file from the diocese. The purpose of the subpoena was to seek reports of similar misconduct, disciplinary actions, transfers, and potential witnesses who could be called on to rebut the priest's 15 character witnesses. A judge issued the subpoena and it was delivered to the diocese, but the diocese refused to surrender any of its personnel records. The diocese agreed to a private ("in camera") inspection of the personnel file in the judge's chambers in the presence of the chancellor of the diocese. The file was nearly two inches thick, and was marked "confidential—to be opened by the bishop of the diocese only." The judge made the following comments while opening and reviewing the file: "I open this with reluctance. All right. The court has in summary fashion reviewed the documents. I will say on the record, I consider these to be highly personal documents, private documents of the diocese …. Any my impression [is] that these documents will not be disclosed." The judge later explained his decision as follows: "[T]he diocese has compelling rights of privacy to its personnel files and all of the documents contained therein. The file is clearly marked to be private …. We have the strongest privacy laws in this state of all of the states, and I find that the [prosecution] cannot show compelling interest to crack open private church documents such as these." This decision was appealed by the prosecutor, and the state supreme court upheld the trial judge's decision in favor of the diocese. The court acknowledged that the subpoena power is very broad. However, it not without limits. One of those limits pertains to some personnel records. The court observed: "When discovery of documents such as personnel records are at issue, privacy rights are undoubtedly at stake. Montana adheres to one of the most stringent protections of its citizens' right to privacy in the country. Montana's treatment of privacy rights is more strict than that offered by the federal constitution. The privacy interest in [the priest's] personnel records at the Catholic diocese must be weighed against the state's need to discover the same." The court noted that under the state constitution, privacy interests are protected so long as a party has an expectation of privacy and "society is willing to recognize that expectation as reasonable." The court concluded that the personnel records of the diocese satisfied this test, and accordingly they did not have to be turned over to the prosecutor in response to the subpoena. However, the court pointed out that there is no "blanket unavailability" of such records to the state, and that each case must be evaluated independently. Further, the court pointed out that the personnel files of the diocese were not the prosecutor's only means of locating information. Much of the information sought by the prosecutor could be obtained by conducting an independent investigation. In summary, this ruling is a natural result of the increasing tendency of courts and legislatures to protect the "right of privacy," and it will be of interest to other churches and denominational agencies both in and outside of the state of Montana. Ironically, the same right (privacy) that is the basis for the limited legalization of abortion protected the records of the Catholic diocese in this case from mandatory disclosure to the state. State v. Burns, 830 P.2d 1318 (Mont. 1992).
See Also: Church Records - Inspection
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